Top Banner
Chapter 6 Employment Testing
37

Chapter 6 Employment Testing. Forms of Testing Polygraphs: Federal Employee Polygraph Protection Act of 1988 severely restricts use of polygraph in employment.

Dec 15, 2015

Download

Documents

Cason Hogan
Welcome message from author
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
  • Slide 1

Chapter 6 Employment Testing Slide 2 Forms of Testing Polygraphs: Federal Employee Polygraph Protection Act of 1988 severely restricts use of polygraph in employment decisions by most employers Integrity & personality tests: Integrity tests measure a wide variety of constructs Validity may be questionable but tests do not appear to adversely impact any protected groups Personality tests appear to be non-discriminatory Need to measure job-related personality dimensions Tests should have face validity Physical ability: Should measure only essential functions Intelligence: Highly criticized as basis for disparate impact discrimination Drug & alcohol: Covered under the Drug-Free Workplace Act of 1988 Slide 3 Forms of Testing Medical testing: Permitted prior to employment but after an offer has been made Must apply to all employees in the same job category Genetic Testing: Evaluates an individuals biological predisposition to certain diseases May encourage discrimination based on fears and myths HIV/Aids Testing: Inappropriate Does not serve a legitimate business purpose Does not indicate HIV status as of the day of the examination Many arguments for and against HIV/AIDS testing for health care workers Slide 4 Legality of Testing Business necessity Provide job analysis data to support Job related EEOC provides Uniform Guidelines on Employee Selection Process Slide 5 Legality of Testing for Ineligibility Tests for ineligibility may be limited by state statutes or local ordinances Employers may be liable for certain tort claims because of ineligibility testing Invasion of privacy Reckless or negligent infliction of emotional distress Defamation Wrongful discharge Slide 6 Drug Tests 1 Drug testing in employment is used: Prior to hiring; As part of periodic medical exams; To verify that employees who have been through drug rehab programs are clean; Upon observation of aberrant behavior that create reasonable suspicion of drug use; And randomly. Slide 7 Lanier v. City of Woodburn Facts: Plaintiff applied for a job as a part-time page at Woodburns library, and was conditionally hired, subject to a background check, medical exam and drug screening. She refused the drug test. The offer was withdrawn and she sued under the U.S. (4th Amendment) and Oregon Constitutions.4th Amendment Issue: Whether the Citys policy requiring suspicionless, warrantless, pre-employment drug tests (searches) of candidates of choice for city jobs was constitutional as applied. Held: No. This was not a safety-related job, and the City did not demonstrate a special need to screen a prospective page for drug use. Slide 8 Just the Facts Citys drug testing policy called for random, unannounced drug testing of employees in safety-sensitive positions. The City drug-tested all streets and sanitation department employees on a certain day, but one driver/laborer refused. Because he did not have a Commercial Drivers License (CDL) and did not operate the largest pieces of heavy equipment, he was not subject to federal drug testing requirements for transportation workers. However, he did operate one-ton dump trucks, and dump trucks with plows, as part of his job. He had no accidents on the job and there was no history of drug-related accidents among city workers. In a City test two years earlier, the employee tested positive for marijuana use. The employee was terminated for refusing the drug test and sued. Were the employees constitutional rights violated? Krieg v. Seybold, 481 F.3d 512 (7th Cir. 2007)Krieg v. Seybold Slide 9 Drug Testing 2 There is no one rule that applies to whether an employer may use drug testing and under what circumstances. Drug testing laws vary from state to state. 10 states ban it or limit it to certain safety-related industries. Random drug testing of union members is a topic of mandatory bargaining, and depends on the Collective Bargaining Agreement (CBA). Collective Bargaining Agreement (CBA). Slide 10 Drug Testing 3 Random drug testing by public employers is prohibited by the 4 th Amendment to the U.S. Constitution and some state constitutions. But public employers may drug test for safety- sensitive jobs or upon reasonable suspicion. Drug and alcohol testing of employees in transportation-related jobs is required. Slide 11 Government Employees Federal, state and local employees are protected from government intrusion Constitutional protection The Fourth Amendment protects against unreasonable search and seizure Collection of personal information has been considered a search Detaining an employee may lead to charges of false imprisonment The Court has not addressed the right to be free from mandatory pre-employment medical tests Slide 12 Drug Testing Procedures 1 The most common procedures required by state statutes are that employees must: Be given written notice that drug testing is required Be given copies of the employers substance abuse and drug testing policy Be given test results in writing Be given an opportunity to explain the result if the test is positive Slide 13 Drug Testing Procedures 2 Employers must: Use licensed laboratories to analyze samples Perform confirmatory tests, if requested, or allow employees samples for their own tests Collect samples with due regard for employees privacy Keep results of drug tests confidential Slide 14 Drug Free Workplace Act Drug Free Workplace Act 1 Firms that contract with the federal government must comply. The DFWA requires that employers: Develop & communicate policies concerning drug use, sale or possession in the workplace Inform employees about the dangers of drug use and options for counseling and treatment Establish penalties for drug use violations Report any drug use convictions Slide 15 Smart Practice Drug Testing 1 Notify employees if they are subject to drug testing. Notify employees of the circumstances under which drug testing will occur. Notify employees of the consequences of testing positive. Carefully label specimens Document chain of custody for samples. Respect the privacy of employees being tested. Slide 16 Smart Practice Drug Testing 2 Use reputable labs, and monitor their performance. Use confirmatory tests for positive results. Appoint a medical review officer to interpret results. After a positive result, seek information about medications the employee is taking. Take into account medications that may affect the result. Slide 17 Smart Practice Drug Testing 3 Give employees the opportunity to provide alternative explanations for positive results. Treat all drug tests as confidential. Provide rehabilitation drug programs. Slide 18 Americans with Disabilities Act Under the ADA, an employer must not fail to promote, terminate, or otherwise discriminate against an employee who has undergone treatment for drug addiction and is no longer using drugs. The inquiry must be whether the employee is able to perform the essential functions of the job, with or without reasonable accommodation.reasonable accommodation If the applicant is able, the medical condition does not disqualify him. Slide 19 Medical Examinations 1 A medical examination is any procedure or test that seeks information about an individuals impairments or health, but which tests are medical exams is not always clear. If a test is a medical exam, then it is covered by the ADA. Under the ADA, prior to making a conditional offer of employment, an employer is prohibited from requiring applicants submit to medical exams. Slide 20 Medical Examinations 2 Medical exams following conditional offers of employment are unrestricted in scope, and may inquire into physical and mental health of applicants which are NOT job related. Medical exams of current employees are limited to job- related inquiries. As a practical matter, medical exams should be the last tests performed in the hiring process. Slide 21 Medical Examinations 3 See Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 2005 U.S. App. LEXIS 11142 (7th Cir. 2005) Slide 22 HIV Tests & the ADA An HIV test may not be conducted until after a conditional offer of employment has been made.HIV Because a person who is HIV positive is disabled under the ADA, a positive test cannot be used to deny employment, unless the person cannot perform the essential functions of the job, even with accommodation, or is a direct threat. Recommended: Except for few jobs, employers should not conduct HIV tests. They can rarely be used and may result in a claim of discrimination. Slide 23 Genetic Testing The Genetic Information Nondiscrimination Act of 2008 forbids employers from using genetic tests or information to screen or discriminate against employees in health insurance and employment.The Genetic Information Nondiscrimination Act of 2008 Narrow exceptions permit employers to genetically monitor the biological effects of toxic substances in the workplace. The Act applies to employees covered by Title VII, and will take effect late in 2009.Title VII prohibits group health plans and health insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic predisposition to developing a disease in the future. bars employers from using individuals genetic information when making hiring, firing, job placement, or promotion decisions The Act contains amendments to the Employee Retirement Income Security Act and the Internal Revenue Code. Slide 24 State Genetic Testing Laws Relating to Employment http://www.ncsl.org/programs/health/genetics/ndiscri m.htmhttp://www.ncsl.org/programs/health/genetics/ndiscri m.htm Slide 25 Polygraphs & Honesty Tests The Employee Polygraph Protection Act (EPPA) forbids private employers from requiring a pre- employment polygraph or other truth-telling devices, including voice stress analyzers.The Employee Polygraph Protection Act (EPPA) Exceptions exist for private employers in certain industries (controlled substances, nuclear power plants, etc.). However, such tests are permitted after an employee theft or other serious event. Pencil and paper honesty tests are permissible. Slide 26 Scored Tests of Ability Scored tests of ability are designed to screen out candidates with undesirable traits or to hire those with desirable traits. They measure intelligence, aptitude, specific job skills or knowledge, work-related attitudes, personality traits, strength and physical fitness They must not be discriminatory. Slide 27 Examining Test Results 1 To avoid discrimination, compare the protected class composition of an applicant pool to the group that passed the test (applicant flow data).applicant flow data To determine significance, EEOC follows the four fifths rule.four fifths rule If the selection rate (the % of applicants to pass the test, and continue to be considered) for one protected group is less than 80% (4/5ths) of the selection rate for the protected group that was most successful, this is evidence of discriminatory effect. Slide 28 Examining Test Results 2 Note that the 4/5ths rule is a rule of thumb, and not an absolute legal requirement. The rule is valid only if there is a large enough applicant pool. Employers must monitor and maintain records on the effects of testing procedures on different class groups. Slide 29 EEOC v. Dial Corp. Facts: EEOC sued Dial on behalf of women not hired for positions lifting sausage, claiming adverse impact caused by a pre-employment weight lifting test. 38% of women and 97% of men passed the test. Because of injuries, Dial began safety measures in 1996 (injuries dropped), and the Work Tolerance Screen (WTS) in 2000, after which hires of women dropped to 8% in 2002. EEOC won at trial. Issue: Whether Dial showed business necessity, or content or criterion validity. Held: No. For validity to be demonstrated, the test must be representative of important aspects of job performance. The WTS was more difficult than the job itself, and screened out more women. Slide 30 Job Related Tests Even if a test has an adverse discriminatory impact, it may be used if the employer can establish that it is job related and consistent with business necessity. Employer must establish validity Does the test measure what it purports to measure? Two primary ways to establish validity: Content validity Criterion validity Slide 31 Content Validity 1 A test has content validity if it requires the performance of the same behaviors and skills as the job in question. Example: word processing test for secretarial job Content validation cannot be used to validate tests of intangible traits (intelligence, personality). Many jobs can be learned quickly. Testing that screens out people who could perform the job following minimal on-the-job training are not job- related and consistent with business necessity. Slide 32 Content Validity 2 Practical Advice for Employers Use content validation tests as much as possible. But do not use them to assess intangible characteristics, such as intelligence, personality, and other intangible characteristics. Do not use content validation tests for tasks that could readily be learned on the job. Slide 33 Criterion Validity Criterion refers to a measure of job performance. Criterion validation requires a demonstrated statistical association between performance on a test and performance on the job Criterion validation studies may be: predictive or concurrent A typical measure of association is the correlation coefficient. A positive correlation indicates a link with job performance. Slide 34 Validation Studies A validation study provides evidence that a test is related to job performance. Although not required by law, it is wise for an employer to establish validity before using a test. The EEOC provides guidelines for how to proceed.guidelines Slide 35 Scoring Tests Tests may be scored pass/fail. Passing scores may be ranked. Employers may not use race norming or otherwise adjust scores based on protected class characteristics. In determining appropriate cut-off levels, an employer should not set the bar artificially high, with discriminatory effects. Banding of similar test scores (82-86) and treating them similarly has been upheld. Slide 36 Accommodating the Disabled During Testing The legal responsibility to provide accommodation begins pre-hire. Unless the disability is obvious, the employer is not responsible for providing accommodation unless requested. However, employers should tell candidates about the types of tests that will be used. Finally, employers should document requests for accommodation. Slide 37 What Would You Do? You are the office manager of a branch of a sizable international company. A new directive has just come down from headquarters telling you that you should use a certain abilities test in screening all applicants for jobs in your office. Youve reviewed the test, and come to the conclusion that it will likely have an adverse impact on applicants who speak English as their second language, people who constitute a significant portion of your labor pool. What would you do?